McHenry v. Tienor
SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 5/19/2023. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the b alance of the filing fee as specified. Plaintiff may PROCEED against Defendant on an Eighth Amendment deliberate indifference to serious medical need claim. Copies of Plaintiff's Complaint and this Order to be electronically SENT to the WI DOJ f or service on Defendant, who shall FILE a responsive pleading within 60 days. Defendant to FILE any exhaustion-related challenges in a motion for summary judgment within 45 days. Motions to dismiss must comply with specified requirements. See Order. (cc: all counsel, via mail to Kriscilla K McHenry with prisoner and pro se guides and to Warden (order only) at Taycheedah Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KRISCILLA K. MCHENRY,
Case No. 23-CV-68-JPS
RN PATRICK A. TIENOR,
Plaintiff Kriscilla K. McHenry, an inmate confined at Taycheedah
Correctional Institution (“TCI”), filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that Defendant RN Patrick A. Tienor (“Tienor”) violated her
constitutional rights. This Order resolves Plaintiff’s motion for leave to
proceed without prepaying the filing fee and screens her complaint.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case
because Plaintiff was a prisoner when she filed her complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with her case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). She must then pay the balance of the $350 filing
fee over time, through deductions from her prisoner account. Id.
On April 3, 2023, the Court ordered Plaintiff to pay an initial partial
filing fee of $46.60. ECF No. 12. Plaintiff paid that fee on May 3, 2023. The
Court will grant Plaintiff’s motion for leave to proceed without prepaying
the filing fee. ECF No. 2. She must pay the remainder of the filing fee over
time in the manner explained at the end of this Order.
SCREENING THE COMPLAINT
Federal Screening Standard
Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint if the prisoner raises claims that are legally “frivolous
or malicious,” that fail to state a claim upon which relief may be granted, or
that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b).
In determining whether the complaint states a claim, the Court
applies the same standard that applies to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017)
(citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th
Cir. 2012)). A complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The complaint must contain enough facts, accepted as true, to “state a claim
for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows
a court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived her of a right secured by the Constitution or
the laws of the United States and that whoever deprived her of this right
was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
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F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).
Plaintiff’s claim is related to Tienor denying her medical care at TCI
on July 4, 2021. ECF No. 1 at 2. Plaintiff alleges she was not feeling well and
had a correctional officer call the Health Services Unit (“HSU”) to see a
medical provider. Id. Plaintiff filled out a Health Service Request (“HRS”)
slip when she arrived at HSU. Id. Plaintiff asked Tienor if she would be
charged for the visit. Id. Plaintiff told Tienor that her chest hurt and asked
if Tienor was going to ask her a question. Id. Tienor said she should drink
water and that she should go back to her unit. Id.
Plaintiff was in a wheelchair and returned to her cell. Id. at 2-3.
Plaintiff told the sergeant that Tienor refused her medical care. Id. at 3.
Plaintiff was locked in her cell and fell asleep due to her pain and
exhaustion. Id. Plaintiff slept for three days straight until Correctional
Officer Miller came to check on her. Id. Plaintiff told Miller that she was in
pain and wanted to sleep. Id. Plaintiff alleges that Tienor knew of her
medical condition and refused her medical treatment because she asked if
she would be charged for the visit. Id. Plaintiff alleges that Tienor falsely
reported that she did not look to be in any distress and that she had been
yelling when he refused Plaintiff care. Id.
The Court finds that Plaintiff may proceed against Tienor for an
Eighth Amendment deliberate indifference claim for his indifference to
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Plaintiff’s medical need. The Eighth Amendment secures an inmate’s right
to medical care. Prison officials violate this right when they “display
deliberate indifference to serious medical needs of prisoners.” Greeno v.
Daley, 414 F.3d 645, 652 (7th Cir. 2005) (internal quotation omitted).
Deliberate indifference claims contain both an objective and a subjective
component: the inmate “must first establish that his medical condition is
objectively, ‘sufficiently serious,’; and second, that prison officials acted
with a ‘sufficiently culpable state of mind,’ i.e., that they both knew of and
disregarded an excessive risk to inmate health.” Lewis v. McLean, 864 F.3d
556, 562–63 (7th Cir. 2017) (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994) (internal citations omitted)).
“A delay in treating non-life-threatening but painful conditions may
constitute deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Arnett v. Webster, 658 F.3d 742,
753 (7th Cir. 2011) (citing McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010)). The length of delay that is tolerable “‘depends on the seriousness of
the condition and the ease of providing treatment.’” Id. (quoting McGowan,
612 F.3d at 640). At the screening stage, the Court finds that Plaintiff’s
allegations are sufficient to proceed against Tienor. Plaintiff alleges a
potentially serious medical condition of chest pain and that Tienor denied
her medical care based on a personal reason as opposed to a medical
decision. As such, Plaintiff may proceed against Tienor for an Eighth
Amendment deliberate indifference claim for his indifference to Plaintiff’s
serious medical need.
In light of the foregoing, the Court finds that Plaintiff may proceed
on the following claim pursuant to 28 U.S.C. § 1915A(b):
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Claim One: Eighth Amendment deliberate indifference claim
against Defendant Tienor for his indifference to Plaintiff’s serious medical
The Court has enclosed with this Order guides prepared by court
staff to address common questions that arise in cases filed by prisoners.
These guides are entitled, “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions.” They
contain information that Plaintiff may find useful in prosecuting her case.
Defendant should take note that, within forty-five (45) days of
service of this Order, he is to file a summary judgment motion that raises
all exhaustion-related challenges. The Court will issue a scheduling order
at a later date that embodies other relevant deadlines.
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that under an informal service
agreement between the Wisconsin Department of Justice and this Court, a
copy of the complaint and this Order have been electronically transmitted
to the Wisconsin Department of Justice for service on Defendant Tienor;
IT IS FURTHER ORDERED that under the informal service
agreement, Defendant shall file a responsive pleading to the complaint
within sixty (60) days;
IT IS FURTHER ORDERED that Defendant raise any exhaustionrelated challenges by filing a motion for summary judgment within fortyfive (45) days of service;
IT IS FURTHER ORDERED if Defendant contemplates a motion to
dismiss, the parties must meet and confer before the motion is filed.
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Defendant should take care to explain the reasons why he intends to move
to dismiss the complaint, and Plaintiff should strongly consider filing an
amended complaint. The Court expects this exercise in efficiency will
obviate the need to file most motions to dismiss. Indeed, when the Court
grants a motion to dismiss, it typically grants leave to amend unless it is
“certain from the face of the complaint that any amendment would be futile
or otherwise unwarranted.” Harris v. Meisner, No. 20-2650, 2021 WL
5563942, at *2 (7th Cir. Nov. 29, 2021) (quoting Runnion ex rel. Runnion v.
Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 524 (7th Cir. 2015)).
Therefore, it is in both parties’ interest to discuss the matter prior to motion
submissions. Briefs in support of, or opposition to, motions to dismiss
should cite no more than ten (10) cases per claim. No string citations will be
accepted. If Defendant files a motion to dismiss, Plaintiff is hereby warned
that she must file a response, in accordance with Civil Local Rule 7 (E.D.
Wis.), or she may be deemed to have waived any argument against
dismissal and face dismissal of this matter with prejudice;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from her institution trust account the $303.40 balance
of the filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’s trust account and forwarding payments to the Clerk
of Court each time the amount in the account exceeds $10 in accordance
with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this case. If Plaintiff is transferred to
another county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with her remaining balance to the
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IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined; and
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
copy of the guides entitled “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions,” along
with this Order.
Dated at Milwaukee, Wisconsin, this 19th day of May, 2023.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, will be required to submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
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DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply may result in the dismissal of this action for failure to
prosecute. In addition, the parties must notify the Clerk of Court of any
change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.
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